Gujarat High Court
Alkaben Ishwarlal Vyas vs State Of Gujarat on 17 August, 2023
NEUTRAL CITATION
R/CR.MA/23337/2016 JUDGMENT DATED: 17/08/2023
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/CRIMINAL MISC.APPLICATION NO. 23337 of 2016
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR. JUSTICE J. C. DOSHI
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1 Whether Reporters of Local Papers may be
allowed to see the judgment ?
2 To be referred to the Reporter or not ?
3 Whether their Lordships wish to see the fair
copy of the judgment ?
4 Whether this case involves a substantial
question of law as to the interpretation of the
Constitution of India or any order made
thereunder ?
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ALKABEN ISHWARLAL VYAS
Versus
STATE OF GUJARAT & 1 other(s)
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Appearance:
MR JIGAR G GADHAVI(5613) for the Applicant(s) No. 1
MR NITIN T GANDHI(5620) for the Applicant(s) No. 1
MR. NISHIT P GANDHI(6946) for the Respondent(s) No. 2
MS ASMITA PATEL, ADDL. PUBLIC PROSECUTOR for the
Respondent(s) No. 1
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CORAM:HONOURABLE MR. JUSTICE J. C. DOSHI
Date : 17/08/2023
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NEUTRAL CITATION
R/CR.MA/23337/2016 JUDGMENT DATED: 17/08/2023
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ORAL JUDGMENT
1. Heard learned advocate Mr. Jigar Gadhavi for the petitioner, learned advocate Mr. Nishit Gandhi for the respondent No.2 and learned APP Ms. Asmita Patel for the respondent State.
2. By way of this petition under section 482 of the Code of Criminal Procedure, 1978, the petitioner prays to quash and set aside FIR being II - C.R. No.504 of 2016 registered with Bopal Police Station for the offences punishable u/s 504, 506(2), 114 of the IPC.
3. Brief facts of the case are that the petitioner - accused and the complainant were good friends and they were knowing each other. The complainant was used to come at the home of the petitioner/accused, whereupon, the petitioner/accused was living with one Mr. KK Singhal. There were some allegations of illicit relationship. On 6.8.2016, the complainant was at her home with her children, at that time around 11 o'clock in the mid night, the petitioner/accused came to the home of the complainant and spoken filthy and abortive language towards Mr. KK Singhal. The husband of the complainant at that time tried to subside the situation, but at that time, the petitioner/accused passed threat of dire consequences and also spoken filth, but abortive language. Since the parties have harboured trifling grudges, this incident was reported by the complainant to Bopal Police Station and came to be registered as FIR being II - C.R. No.504 of 2016 registered with Bopal Police Station for the offences punishable u/s 504, 506(2), 114 of the Page 2 of 12 Downloaded on : Sun Sep 17 01:24:42 IST 2023 NEUTRAL CITATION R/CR.MA/23337/2016 JUDGMENT DATED: 17/08/2023 undefined IPC..
4. The petitioner/accused therefore, approached this Court by way of relief to quell the impugned FIR.
4.1 On 19.7.2021, this Court has passed following order:-
"Heard learned Advocate Shri Kartik Barot on behalf of Shri Jigar Gadhavi for the applicant, learned APP Ms.M.D. Mehta for the respondent - State and learned Advocate Shri Nishit P. Gandhi for the respondent no.2.
Learned APP submits in pursuance to order dated 01.07.2021 a report is submitted, which shows that charge-sheet papers are ready but it appears that copy of the charge-sheet is not supplied to the concerned parties and further the same appears not to have been filed before the concerned Court. Having regards to the same, the said report is directed to be taken on record, the Investigation Officer shall do the needful to ensure that by the next date of hearing, the charge-sheet is filed and parties are supplied with the copy of the charge-sheet. Learned APP also shall supply a copy of charge-sheet for perusal of this Court. Stand over to 04.08.2021."
4.2 Again, identical order was passed on 4.8.2021.
Learned APP for the respondent-State may call for charge sheet papers and submit it before the registry of this court on or before the next date of hearing. Stand over to 18th August 2021.
4.3 On 21.7.2022, this Court has passed following order:-
Learned Additional Public Prosecutor Ms.Maithili Mehta, upon instructions from officer present in the Page 3 of 12 Downloaded on : Sun Sep 17 01:24:42 IST 2023 NEUTRAL CITATION R/CR.MA/23337/2016 JUDGMENT DATED: 17/08/2023 undefined Court viz. Yashwantsinh Devisinh Barad, states that original papers of the investigation are lost and not traceable and, therefore, charge-sheet could not be filed. Learned Additional Public Prosecutor assures that appropriate action shall be taken by higher-ups and requests for time. Hence, stand over to 10.08.2022.
4.4 On 2.9.2022, this Court passed following order:-
"Ms. Maithili D. Mehta, the learned Additional Public Prosecutor appearing for the respondent State upon instructions stated that the papers as available with regard to the complaint being C.R. No.II504/2016 dated 27.08.2016 registered with Bopal Police Station for the offence punishable under Sections 504, 506(2) and 114 of the Indian Penal Code and the charge- sheet shall be produced on record before the next date of hearing. Affidavit be filed as to how such papers could be lost and what is the next proposed step by the respondent authority.
Post the matter on 16.09.2022."
4.5 On 26.7.202, this Court has passed following order:-
"Mr. V R Desai, In-charge of the Bopal Police Station is present before the Court and through learned APP submits that the application for further investigation has been moved before the court of learned Chief Judicial Magistrate, Ahmedabad (Rural) as the papers of charge-sheet related to offence being IICR No.504 of 2016 are missing. The record also speaks that on 07/10/2020, the In-charge Police Inspector, Bopal Police Station made a similar statement to this Court, as also affirmed on oath by way of an affidavit dated 19/09/2022.
Under the circumstances, learned APP to obtain the necessary instructions and the status of the application, if any, filed before the court of learned CJM, Ahmedabad regarding further investigation;Page 4 of 12 Downloaded on : Sun Sep 17 01:24:42 IST 2023
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Adjourned to 02/08/2023."
5. In background of the above facts and various orders passed by this Court, it is necessary to refer the affidavit-in-reply filed on behalf of Smt. Shruti Desai,PSI, Bopal Police Station. The contents of the affidavit are as under:-
"1. I say and submit that the present affidavit is filed in due compliance of the order passed by this Hon'ble High Court dated 02.09.2022. I further say and submit that the present affidavit is filed to explain how the investigation papers got lose and what is the next step authority. proposed by the respondent authority.
2. I say and submit that Investigating Officer on duly investigating the FIR in question bearing No. II- 504/2016 dated 27.08.2016 registered with Bopal Police Station handed over the investigation papers to Assistant Sub Inspector, Babubhai Jenabhai whose name is also reflected in the online charge-sheet. Before his retirement on 30.06.2017, the investigation papers were handed over to Shri P. V. Desai the than Police Sub Inspector, Bopal Police Station. It is further required to be noted that Shri P. V. Desai handed over the investigation papers to Police Sub- Inspector Vishalsinh Arjunsinh, Crime Writer on 16.10.2017 and had obtained his signature mentioning receipt of the papers.
3. I say and submit that the charge-sheet stood prepared and filed online but subsequently the charge-sheet so prepared got misplaced, efforts were made to search the same before the Sessions Court and the Police Station but till date unfortunately the charge-sheet as well as investigation papers of FIR bearing No. 11-504/2016 registered with Bopal Police Station have not been found. The statement of the writer of Bopal Police Station was taken who disputes the receipt of his signature.
4. I further say and submit that the Police Inspector, Page 5 of 12 Downloaded on : Sun Sep 17 01:24:42 IST 2023 NEUTRAL CITATION R/CR.MA/23337/2016 JUDGMENT DATED: 17/08/2023 undefined make an Bopal Police Station shall now application before the Hon'ble Magistrate under Section 173 (8) of Criminal Procedure Code for further investigation on the ground that original police papers have been misplaced and hence, permission may be granted for further investigation. The online charge-sheet reveals the occurrence of the incident and hence, the same shall be placed before the Hon'ble Magistrate along with the application under further investigation. Section 173 (8) seeking further investigation."
6. Subsequently, she has also filed report dated 7.10.2022, which is placed on record indicating that she has preferred an application for further investigation before the Court of learned 6th Additional CJM, Ahmedabad Rural at Mirzapur.
7. Today, when the matter is taken up for hearing, in-charge PI of Bopal Police Station is present in the Court and shows her incognizant regarding further proceedings. She could not display whether application for further proceedings have been entertained or not, whether learned JMFC has passed any order below it. Learned APP also failed to clarify that how application for further investigation is maintainable in a case, where investigating officer has lost papers of charge sheets. Thus, fact situation makes it clear that the investigating officer has no charge sheet papers with him and there is no likelihood that such charge sheet papers could be traced in near future.
8. In the background of above facts, if we take the FIR on its face, the principal allegation made therein is for the offence punishable u/s 506(2) of the IPC. Section 506 of the IPC reads as under:-
Page 6 of 12 Downloaded on : Sun Sep 17 01:24:42 IST 2023NEUTRAL CITATION R/CR.MA/23337/2016 JUDGMENT DATED: 17/08/2023 undefined "506. Punishment for criminal intimidation.--
Whoever commits, the offence of criminal intimidation shall be punished with imprisonment of either description for a term which may extend to two years, or with fine, or with both; If threat be to cause death or grievous hurt, etc.--And if the threat be to cause death or grievous hurt, or to cause the destruction of any property by fire, or to cause an offence punishable with death or 1[imprisonment for life], or with imprisonment for a term which may extend to seven years, or to impute, unchastity to a woman, shall be punished with imprisonment of either description for a term which may extend to seven years, or with fine, or with both."
9. To understand criminal intimidation, let refer section 503 of the IPC, which reads as under:-
"503. Criminal intimidation.--Whoever threatens another with any injury to his person, reputation or property, or to the person or reputation of any one in whom that person is interested, with intent to cause alarm to that person, or to cause that person to do any act which he is not legally bound to do, or to omit to do any act which that person is legally entitled to do, as the means of avoiding the execution of such threat, commits criminal intimidation. Explanation.--A threat to injure the reputation of any deceased person in whom the person threatened is interested, is within this section. Illustration A, for the purpose of inducing B to desist from prosecuting a civil suit, threatens to burn B's house. A is guilty of criminal intimidation."
10. Expression in section 503 of the IPC is material. To constitute the offence of criminal intimidation u/s 503 of the IPC, the threat must be of that type which is capable of being put into execution by the accused so as to cause alarm to the Page 7 of 12 Downloaded on : Sun Sep 17 01:24:42 IST 2023 NEUTRAL CITATION R/CR.MA/23337/2016 JUDGMENT DATED: 17/08/2023 undefined complainant. Mere boasting of causing harm such as a threat to kill, when the accused was not armed with any type of weapon nor did he use any force cannot be categorized as criminal intimidation. The empty threat does not even make out prima facie case u/s 506 of the IPC. The threat must be communicated or uttered with the intention of its being communicated to the person threatened with the object of influencing his mind.
11. In Ramesh Vs. State reported in AIR 1960 SC 154, the Hon'ble Apex Court has held that section 503 of the IPC consists of two parts, the first part referring to the act of threatening another with injury to his person, reputation or property or to the person or reputation of anyone in which that person is interested, and the second part referring to the intent with which the threatening is carried out. It has also of two categories, one to cause alarm to the person threatened and the second to cause that person to do any act which he is not legally bound to do or to omit to do any act which that person is legally entitled to do, as the means of avoiding the execution of threat.
12. Insofar as offence u/s 504 of the IPC is concerned, let refer section 504 of the IPC.
"504. Intentional insult with intent to provoke breach of the peace.--Whoever intentionally insults, and thereby gives provocation to any person, intending or knowing it to be likely that such provocation will cause him to break the public peace, or to commit any other offence, shall be punished with imprisonment of either description for a term which may extend to two years, or with fine, or with both."Page 8 of 12 Downloaded on : Sun Sep 17 01:24:42 IST 2023
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13. This abusive language if used intentionally for provoking breach of the peace, then it can be prima facie said that offence u/s 504 of the IPC is made out. Mere use of abusive word is not sufficient to bring home the guilt u/s 504 of the IPC. It must provoke to cause breach of peace or to commit any other offence.
14. Though, reading of the FIR indicates use of abusive word, but insight of which, does not indicate that such abusive words are used with an intention to cause breach of peace or knowledge that the breach of peace is likely to be caused thereby.
15. At this juncture, I may refer to the findings and observations of the Hon'ble Apex Court in case of Mahmood Ali and others Vs. State of U.P. and others rendered in Criminal Appeal No.2341 of 2023, held and observed thus:-
"12. At this stage, we would like to observe something important. Whenever an accused comes before the Court invoking either the inherent powers under Section 482 of the Code of Criminal Procedure (CrPC) or extraordinary jurisdiction under Article 226 of the Constitution to get the FIR or the criminal proceedings quashed essentially on the ground that such proceedings are manifestly frivolous or vexatious or instituted with the ulterior motive for wreaking vengeance, then in such circumstances the Court owes a duty to look into the FIR with care and a little more closely. We say so because once the complainant decides to proceed against the accused with an ulterior motive for wreaking personal vengeance, etc., then he would ensure that the FIR/complaint is very well drafted with all the necessary pleadings. The complainant would ensure Page 9 of 12 Downloaded on : Sun Sep 17 01:24:42 IST 2023 NEUTRAL CITATION R/CR.MA/23337/2016 JUDGMENT DATED: 17/08/2023 undefined that the averments made in the FIR/complaint are such that they disclose the necessary ingredients to constitute the alleged offence. Therefore, it will not be just enough for the Court to look into the averments made in the FIR/complaint alone for the purpose of ascertaining whether the necessary ingredients to constitute the alleged offence are disclosed or not. In frivolous or vexatious proceedings, the Court owes a duty to look into 13 many other attending circumstances emerging from the record of the case over and above the averments and, if need be, with due care and circumspection try to read in between the lines. The Court while exercising its jurisdiction under Section 482 of the CrPC or Article 226 of the Constitution need not restrict itself only to the stage of a case but is empowered to take into account the overall circumstances leading to the initiation/registration of the case as well as the materials collected in the course of investigation. Take for instance the case on hand. Multiple FIRs have been registered over a period of time. It is in the background of such circumstances the registration of multiple FIRs assumes importance, thereby attracting the issue of wreaking vengeance out of private or personal grudge as alleged."
16. The useful reference can also be made to the case of State of Haryana Vs. Bhajanlal reported in AIR 1992 SC 604, interpreting section 482 of the Code of Criminal Procedure read with Article 226 of the Constitution of India, principally, inherent power of this Court, the Hon'ble Apex Court made following observations:-
"In the backdrop of the interpretation of the various relevant provisions of the Code under Ch.XIV and of the principles of law enunciated by this Court in a series of decisions relating to the exercise of the extraordinary power under Article 226 or the inherent powers u/s 482 of the Code of Criminal Procedure Page 10 of 12 Downloaded on : Sun Sep 17 01:24:42 IST 2023 NEUTRAL CITATION R/CR.MA/23337/2016 JUDGMENT DATED: 17/08/2023 undefined which we have extracted and reproduced above, the following categories of cases are given by way of illustration wherein such power could be exercised either to prevent abuse of the process of any Court or otherwise to secure the ends of justice, though it may not be possible to lay down any precise, clearly defined and sufficiently channelised and inflexible guidelines or rigid formula and to give an exhaustive list of myriad kinds of cases wherein such power should be exercised.
(1) where the allegations made in the First Information Report or the complaint, even if they are taken at their face value and accepted in their entirety do not prima facie constitute any offence or make out a case against the accused;
(2) where the allegations in the First Information Report and other materials, if any, accompanying the F.I.R. do not disclose a cognizable offence, justifying an investi- gation by police officers under Section 156(1) of the Code except under an order of a Magistrate within the purview of Section 155(2) of the Code;
(3) where the uncontroverted allegations made in the FIR or 'complaint and the evidence collected in support of the same do not disclose the commission of any offence and make out a case against the accused;
(4) where the allegations in the FIR do not constitute a cognizable offence but constitute only a non-
cognizable offence, no investigation is permitted by a police officer without an order of a Magistrate as contemplated under Section 155(2) of the Code; (5) where the allegations made in the FIR or complaint are so absurd and inherently improbable on the basis of which no prudent person can ever reach a just conclusion that there is sufficient ground for proceeding against the accused;
(6) where there is an express legal bar engrafted in any of the provisions of the Code or the concerned Act (under which a criminal proceeding is instituted) to the institu- tion and continuance of the proceedings and/or where there is a specific Page 11 of 12 Downloaded on : Sun Sep 17 01:24:42 IST 2023 NEUTRAL CITATION R/CR.MA/23337/2016 JUDGMENT DATED: 17/08/2023 undefined provision in the Code or the concerned Act, (7) where a criminal proceeding is manifestly attended with mala fide and/or where the proceeding is maliciously instituted with an ulterior motive for wreaking vengeance on the accused and with a view to spite him due to private and personal grudge."
17. The parameters stated in the above judgments are squarely applicable to the facts of the present case. Allowing the FIR to continue into charge sheet and further into trial would be empty formality. Since no case of criminal intimidation or intentional insult to provoke the breach of peace is made out, on reading the FIR as it is, the FIR is required to be quashed and set aside.
18. For the foregoing reasons, present petition is allowed and impugned FIR being II - C.R. No.504 of 2016 registered with Bopal Police Station and all consequential proceedings arising therefrom are hereby quashed and set aside. Rule is made absolute.
(J. C. DOSHI,J) SHEKHAR P. BARVE Page 12 of 12 Downloaded on : Sun Sep 17 01:24:42 IST 2023